Fisher & Paykel Healthcare Limited v ResMed Limited - [2018] APO 67

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Fisher & Paykel Healthcare Limited v ResMed Limited [2018] APO 67

Patent Application: 2014246587

Title:Pap Device with Noise Reducing Enclosure

Patent Applicant:                   ResMed Limited
Opponent:  Fisher & Paykel Healthcare Limited
Delegate:  M. G. Kraefft
Decision Date:  4 October 2018
Hearing Date:  8 August 2018, in Melbourne

Catchwords: PATENTS – section 59 – opposition to grant of patent – whether claims supported by matter disclosed in specification – whether definition required of specific juxtaposition of outlet air opening, outlet port, seal, and catch for lid of humidifier to provide support for claim – non-compliance with support requirement not established – opposition failed.

Representation: Counsel for the applicant: Mr Angus Lang
Patent attorneys for the applicant: Ms Robynne Sanders, Mr Rob McMaster, DLA Piper

Solicitors for the opponent: Mr Matthew Swinn, Ms Ann-Kathrin Goller, Mr Matthew Caldow, King & Wood Mallesons.
Patent attorneys for the opponent: Baldwins

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2014246587

Title:Pap Device with Noise Reducing Enclosure

Patent Applicant: ResMed Limited
Date of Decision: 4 October 2018
DECISION
The claims are supported by the matter disclosed in the specification on all points raised in this opposition.
Subject to appeal, I direct the application proceed to grant.
Costs in accordance with Schedule 8 awarded against the opponent, Fisher & Paykel Healthcare Limited.
REASONS FOR DECISION
BACKGROUND

ResMed Limited (“the applicant”) filed patent application 2014246587 on 9 October 2014. The application is a divisional application based on application 2013201490. There is a lineage of further ancestral applications back to application 2004248855. That application is based on three Australian provisional applications. The earliest claimed priority date is 20 June 2003. Application 2014246587 was advertised as accepted on 9 June 2016.
Fisher & Paykel Healthcare Limited (“the opponent”) filed a notice of opposition on 5 September 2016. A statement of grounds and particulars followed on 5 December 2016.
The opponent’s evidence in support was due by 5 March 2017. While the opponent filed substantive evidence at that time, the opponent subsequently made a request to file further evidence. As such a request is not available under the Patents Act, a delegate of the Commissioner informed the opponent that the request was to be treated as a request that the Commissioner invoke Regulation 5.23. That regulation states that the Commissioner may consult a document that is relevant to the opposition, and has not been filed under this Chapter, and is available in the Patent Office.
The pertinent material was a declaration and accompanying exhibits by a patent attorney for the opponent, Mr Christian Way. The delegate subsequently informed the parties that she was not satisfied that the information in the declaration was of such relevance that it was likely to change the outcome of the opposition in a significant way. On this matter, Regulation 5.23 was not invoked.
The applicant completed its evidence in answer on 27 July 2017. The opponent completed its evidence in reply on 2 October 2017.
Following the completion of evidence in reply, the opponent filed additional material and made a further request that the Commissioner consider this material under Regulation 5.23. The opponent also requested a commensurate amendment to its statement of grounds and particulars in support of the opposition. The material consisted of a Japanese patent document, a verified translation thereof, and a declaration by Mr Philip Dickinson in respect to the relevance of the Japanese document to the opposition.
A further delegate considered the material and was not satisfied that it would change the outcome of the opposition in a significant way. Accordingly the request to invoke Regulation 5.23 was not entertained, as was also the case with the request to amend the statement of grounds and particulars.
SPECIFICATION
The specification describes the invention as relating to breathable gas supply apparatus. The apparatus has particular, but not exclusive, application for use in continuous positive airway pressure (“CPAP”) treatment of conditions such as obstructive sleep apnoea (“OSA”) and other respiratory disorders and diseases such as emphysema.
The specification states that CPAP treatment of OSA involves the delivery of pressurised breathable gas, usually air, to a patient’s airways using a conduit and mask. The pressurised gas acts as a pneumatic splint for the patient’s airway, preventing airway collapse, especially during the inspiratory phase of respiration.
In terms of commercial imperatives, the specification acknowledges the existence of CPAP machines comprising an air flow generator for supplying pressurised air to the patient but that there had been a need for more compact CPAP machines. In seeking to reduce the size of CPAP machines though, there has been a trade-off between reduced size on the one hand and reduced performance and/or increased noise on the other.
The specification also states that the advantages of incorporating humidification of the air supply to a patient are known, and CPAP machines are known that incorporate humidifying devices, either separately from the flow generator or integrated therewith.
A problem with some flow generators is extensive use of foam in the air path for sound absorption. The foam can degrade with time.
Accordingly, the specification states the objects of the invention to be simplicity and compactness of the apparatus and ease of use, and improved noise performance.
The specification ends with 36 claims. Claim 1 is the only independent claim and reads as follows.
1.A breathable gas supply apparatus for treatment of respiratory disorders comprising:
a flow generator with an air inlet on a rear wall, the air inlet providing a supply of ambient air to a blower of the flow generator;
a water container with a first air opening, a second air opening, a top portion, a side surface facing the rear wall and having the second air opening therein and a bottom portion, said bottom portion having a heat conducting surface;
a base with a heater, the base being configured to receive the water container;
a lid above the water container,
a catch for the lid, the catch configured to be rotatably engageable with the base, the catch securing the water container in the base;
a seal between the lid and the top portion of the water container;
an outlet pipe for connection with an air delivery tube in use;
a first gas flow port aligned with and in a facing arrangement with the first air opening;
a second gas flow port in a facing arrangement with the second air opening; and
a peripheral seal between the second gas flow port and the second air opening to create a sealed air path therebetween,
wherein the water container and the base include complementary configurations that facilitate alignment of the water container with respect to the base to ensure alignment between the first air opening and the first gas flow port,
wherein when the catch is engaged to the base, downwards pressure is maintained on the water container to maintain good heat-transfer contact between the bottom portion of the water container and the heater of the base,
wherein the water container can be removed and refilled with water without requiring disengagement of the air delivery tube from the outlet pipe, and
wherein the first air opening, the second air opening, the first gas flow port and the second gas flow port are part of a flow path between the flow generator and the outlet pipe.
STATEMENT OF GROUNDS AND PARTICULARS
The opponent originally relied on six grounds. These were that:-
1.the invention as claimed was not a manner of manufacture;
2.the invention as claimed lacked an inventive step;
3.the invention as claimed was not useful;
4.the specification did not disclose the invention in a manner which was clear enough and complete enough;
5.the claims were not clear, succinct and supported by matter disclosed in the specification;
6.one or more claims were not entitled to the priority date.
The opponent provided particulars against each of the above grounds.
The above item 6 is not an available ground of opposition under Section 59 of the Patents Act. Rather, the priority date is a determination that may be required when considering novelty or inventive step.
In submissions for the hearing, the opponent only pursued the ground that the claims were not supported by matter disclosed in the specification (Subsection 40(3)).
APPLICABLE LAW
The present application is governed by the Patents Act 1990 (“the Act”) as amended by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (“the Raising the Bar Act”). Amendments to Sections 7, 40 and 60 of the Act apply to the present case as a consequence of Schedule 1, items 55(1)(d) and 55(4)(a), and Schedule 6, item 133(7)(d) of the Raising the Bar Act. The application was filed after 15 April 2013.
Subsection 40(3) reads as follows.
“The claim or claims must be clear and succinct and supported by matter disclosed in the specification.”
The standard of proof that applies in the present case is the balance of probabilities. Under subsection 60(3A), if I am satisfied, on the balance of probabilities, that a ground of opposition to the grant of a patent exists, I may refuse the application.
EVIDENCE
In view of the significant contraction of the opponent’s case in submissions as mentioned above, much of the evidence filed in the present case became of little consequence. I will describe and refer to the evidence in this case to the extent necessary below.
EVIDENCE IN SUPPORT
The opponent filed evidence in support from Mr Philip John Dickinson, Ms Louisa-Dawn Kiddie and Mr Michael George Richardson.
Mr Dickinson holds a Bachelor of Mechanical Engineering (Hons) degree. Around the priority date of the application, Mr Dickinson had been a product development engineer for the opponent for approximately four years. He was involved in developing CPAP apparatus and particularly in designing and prototyping injection moulded parts such as centrifugal fan casings and rotors. He indicated there was particular focus on optimising pressure flow and improving noise performance.
In his evidence, Mr Dickinson discussed the key features of claim 1 over the prior art and how a number of those features were simple design choices, known alternatives and straightforward to implement.
The evidence of Ms Kiddie and Mr Richardson is substantially inconsequential in the present case on the remaining subsection 40(3) ground pursued by the opponent.
EVIDENCE IN ANSWER
The applicant filed evidence in answer from Mr Ian Malcolm Smith.
Mr Smith holds a Bachelor of Mechanical Engineering degree. Prior to the priority date, he had worked for more than 20 years in the field of medical device design. This included several years in the design of CPAP devices for the treatment of OSA. Mr Smith was also a previous employee of the applicant.
In his evidence in answer, Mr Smith highlighted several particular advantages of operation for the user of the apparatus of claim 1 compared to prior devices, consistent with the objects of the invention.
EVIDENCE IN REPLY
The opponent filed evidence in reply from Mr Dickinson. This evidence appears to be substantially inconsequential to the remaining subsection 40(3) ground of opposition.
PERSON SKILLED IN THE ART
The field of the present invention relates to CPAP apparatus, and particularly to such apparatus incorporating humidifying devices. The relevant person skilled in the art would thus be a person skilled in the design, development or manufacture of such apparatus. I regard each of the expert declarants from each side, that is, Mr Dickinson and Mr Smith, as representative of the relevant person skilled in the art in the present case.
SUBSECTION 40(3) – SUPPORTED BY MATTER DISCLOSED
Case Law
The Raising the Bar Act introduced the requirement of support as a replacement for the former requirement of fair basis. As explained in the Explanatory Memorandum, Intellectual Property Laws Amendment (Raising the Bar) Bill 2011 (“the Explanatory Memorandum”), Schedule 1 at item 9:
“This item is intended to align the Australian requirement with overseas jurisdictions’ requirements (such as the UK). Overseas case law and administrative decisions in respect of the ‘support’ requirement will be available to Australian courts and administrative decision-makers to assist in interpreting the new provision.”
The general approach to the requirement of support is stated in Schering Biotech Corp.’s Application, [1993] RPC 249, by Aldous J at 252:
“… to decide whether the claims are supported by the description it is necessary to ascertain what is the invention which is specified in the claims and then compare that with the invention which has been described in the specification. Thereafter the court’s task is to decide whether the invention in the claims is supported by the description. I do not believe that the mere mention in the specification of features appearing in the claim will necessarily be a sufficient support. The word ‘support’ means more than that and requires the description to be the base which can fairly entitle the patentee to a monopoly of the width claimed.”
In the House of Lords decision, Biogen Inc. v Medeva Plc, [1996] UKHL 18, [1997] RPC 1, Lord Hoffman referred at [57] to the Asahi Kasei Kogyo KK’s Application decision, [1991] RPC 485, to iterate that, for matter to be capable of supporting an invention, it must contain an “enabling disclosure”. That is, it must disclose the invention in a way which will enable it to be performed by a person skilled in the art. Subsequently, Lord Hoffmann described a long-established principle of patent law in the UK. At [63] of Biogen:-
“… namely, that the specification must enable the invention to be performed to the full extent of the monopoly claimed. If the invention discloses a principle capable of general application, the claims may be in correspondingly general terms. The patentee need not show that he has proved its application in every individual instance. On the other hand, if the claims include a number of discrete methods or products, the patentee must enable the invention to be performed in respect of each of them.”
Further at [64]:-
“Thus if the patentee has hit upon a new product which has a beneficial effect but cannot demonstrate that there is a common principle by which that effect will be shared by other products of the same class, he will be entitled to a patent for that product but not for the class, even though some may subsequently turn out to have the same beneficial effect … On the other hand, if he has disclosed a beneficial property which is common to the class, he will be entitled to a patent for all products of that class (assuming them to be new) even though he has not himself made more than one or two of them.” (citations omitted)
In reviewing the above decisions and other overseas decisions in CSR Building Products Limited v United States Gypsum Company, [2015] APO 72, the delegate (at [115]) formulated a 3-step approach to answering the question of support. The approach was underpinned by the concept of the “technical contribution to the art” and reads as follows:-
i.construe the claims to determine the scope of the invention as claimed,
ii.construe the description to determine the technical contribution to the art, and
iii.decide whether the claims are supported by the technical contribution to the art.
The “technical contribution to the art” is not to be confused with the “inventive concept” that is often discussed in relation to inventive step. The distinction was explained by Lord Walker in Generics (UK) Ltd v H Lundbeck A/S, [2009] UKHL 12; [2009] RPC 13 at [30]:
“’Inventive concept’ is concerned with the identification of the core (or kernel, or essence) of the invention – the idea or principle, of more or less general application (see Kirin-Amgen [2005] RPC 9 paras 112-113) which entitles the inventor’s achievement to be called inventive. The invention’s technical contribution to the art is concerned with the evaluation of its inventive concept - how far forward has it carried the state of the art?” (emphasis in the original)
In Generics at [95], Lord Neuberger described the technical contribution as follows:-
“… in the context of a simple product claim such as the present (especially where the claim is to a single chemical product), the technical contribution is (at least in the absence of special factors) the product itself. As I have suggested, the technical contribution can often be equated with non-obvious novelty – what is new to the art and not obvious is really another way of identifying the technical contribution.”
In the same case at [97] per Lord Neuberger, the connection between the allowed extent of the patent monopoly and the technical contribution to the art was drawn as follows. Quoting with approval from an EPO Boards of Appeal decision, Fuel Oils/Exxon, (T409/91) [1994] OJ EPO 653:-
“… there is a ‘general legal principle that the extent of the patent monopoly, as defined by the claims, should correspond to the technical contribution to the art in order for it to be supported, or justified’. However, the passage continues:
‘This means that the definitions in the claims should essentially correspond to the scope of the invention as disclosed in the description. In other words, … the claims should not extend to subject-matter which, after reading the description, would still not be at the disposal of the person skilled in the art.’”
The Federal Court of Australia considered the support requirement in Encompass Corporation Pty Ltd v InfoTrack Pty Ltd, [2018] FCA 421. In that case, Perram J directed attention (at [170]) to the two concepts said by the Explanatory Memorandum to be the elements for the idea of “support”. That is:-
a)there must be a basis in the description for each claim; and
b)the scope of the claims must not be broader than is justified by the extent of the description, drawings and contribution to the art.
Discussion
At the hearing, the opponent referred to the applicant’s written submissions to outline three requirements for the support of claims according to the law. Principally, the opponent put the requirements as follows. Firstly, claims may not be considered allowable if they encompass subject matter which in the light of the disclosure provided by the description can be performed only with undue burden or with application of inventive skill. Secondly a technical feature, which is described as being an essential feature of the invention, must also be part of the independent claim or claims defining the invention. Thirdly, if the claim relates to a principle of general application then the specification needs to indicate or have some justification or reasonable expectation that the invention will work for anything that falls within that general class.
While there was no apparent dispute between the parties on the requirements, the following examples highlight the different positions held by the parties as to how those requirements applied in the present case. In essence, the opponent contended that claim 1 is cast more broadly than the technical contribution provided by the specification warrants. More particularly, the opponent contended that claim 1 should be restricted to specific locations and interrelationships of features of the humidifier since no other examples or alternatives are provided in the specification. On the other hand, the applicant contended that the specification outlined principles of general application for the features of the humidifier. That is, the features were not confined by specific location or functionality in the way contended by the opponent.

The opponent nominated the following aspects of claim 1 that it stated were not supported by matter disclosed in the specification. They were that:-
(a)there was no support for a first air opening located other than on the top portion of the water tub;
(b)there was no support for a first gas flow port located other than in the lid;
(c)there was support only for the first air opening and second air opening being the air outlet and inlet respectively of the water tub;
(d)there was support only for a catch that engages the heater pad; and
(e)there was support only for a lid seal that functions to seal the air outlet of the water tub and a gas flow port located on the lid.
Determine The Scope Of The Invention As Claimed
In written submissions, there appeared to be no substantial dispute between the parties on the scope of the invention as claimed in claim 1. In broadly following the opponent’s and applicant’s outlines in their submissions at [41] and [14] respectively, I would outline the relevant features of the breathable gas supply apparatus of claim 1 as follows:-
(a)a flow generator with an air inlet on a rear wall;
(b)a water container with a top portion, a bottom portion having a heat conducting surface, and two air openings – the location of the first opening is not specified; the location of the second opening is on the side surface of the container facing the rear wall of the flow generator;
(c)a base with a heater, the base being configured to receive the water container;
(d)a lid above the water container;
(e)a catch for the lid, the catch being configured to rotatably engage with the base to secure the water container in the base and, when engaged, downwards pressure is maintained on the water container to maintain good heat-transfer contact between the bottom portion of the water container and the base heater;
(f)a seal between the lid and the top portion of the water container;
(g)an outlet pipe for connection with an air delivery tube in use;
(h)first and second gas flow ports in facing arrangement with the first and second air openings respectively;
(i)a peripheral seal between the second gas flow port and the second air opening to create a sealed air path therebetween;
(j)wherein the water container and the base include complementary configurations that facilitate alignment of the water container with respect to the base to ensure alignment between the first air opening and the first gas flow port;
(k)wherein the water container can be removed and refilled with water without requiring disengagement of the air delivery tube from the outlet pipe; and
(l)wherein the first and second air openings and the first and second gas flow ports are part of a flow path between the flow generator and the outlet pipe.
The above features (b) to (l) relate the features of a humidifying device. Claim 1 thus defines a CPAP apparatus incorporating a flow generator and a humidifier. It may be noted that the flow generator and humidifier, as claimed, are not necessarily fully integrated. Claim 1 merely requires the side surface of the water container to face the rear wall of the flow generator, and that the air openings and the gas flow ports are part of a flow path between the flow generator and the outlet of the humidifier.
The body of the specification describes two lids of the humidifier. For example, at [00135] of the specification, there is a humidifier lid 648 which, when closed, presses the water tub 698 and tub lid 700 rearwards to create a sealed air path from the flow generator outlet to the headspace of the tub. At [00136], the inside wall of the tub lid 700 has projections to limit the press fitting of the tub lid onto the tub base 698. It thus appears that the tub lid is synonymous with the top portion of the water container of claim 1. By contrast, the definitions in claim 1 of a lid above the water container, and a seal between the lid and the top portion, would suggest that lid encompasses the humidifier lid 648.
Determine The Technical Contribution To The Art
The opponent referred to Lord Walker’s comments at [30] in Generics to firstly submit that the assessment of the technical contribution of the specification requires a consideration of how far forwards the specification has carried the state of the art. Secondly, the extent of generalisation permissible in the claims must be judged in light of the relevant prior art. Accordingly, the opponent submitted it is relevant to consider some aspects of the prior art cited in the opposition.
In referring to individual aspects from a number of citations, the opponent concluded the technical contribution in the present case can be regarded as relatively narrow. While it is necessary to understand which aspects were known at the relevant time, the task of determining the technical contribution involves more than this.
The applicant referred to the specification at [0006] – [0008] to state the specification discloses an apparatus that contains a number of advances and inventions over the prior art. They contributed together to realise the general object of providing a simple and compact CPAP apparatus incorporating a humidifier which is simple and economic in its construction, compact and easy to use (at [0007]). Through [0006] and [00154] of the specification, the applicant submitted the specification targeted the humidifier as the relevant area of the invention in respect to ease of use and compact size. Moreover the applicant submitted that principles of general application, as per the Biogen case discussed above, applied in the present case.
The specification recites several problems that existed in the background art, several objects to mitigate those problems, and several apparent advances over the prior art with the disclosed apparatus. At [0003] of the specification, in seeking to reduce the size of CPAP machines, there has been the trade-off between reduced size on the one hand and reduced performance and/or increased noise on the other. At [0005], there is the problem of foam degradation where foam had been used in the air path of flow generators for sound absorption. The stated objects of the invention are simplicity and compactness of the apparatus and ease of use (at [0006]), reduction in size compared with known units having similar performance, and noise reduction to enable a smaller machine to have comparable or better noise performance with known larger machines (at [0007]).
Various forms of the flow generator are subsequently described in consistory form, particularly to address the noise issue. At [0013] of the specification, the flow generator is positioned within a case with its power supply unit adapted for drop-in assembly and mounting in the case. At [0014], the blower enclosure for the flow generator includes a metal container over-moulded with an acoustically damping polymer lining. The specification further refers to the use of a similar composite at [0015], and to a composite of two plastics at [0016]. Further noise reduction characteristics of the flow generator include a fan support arrangement where mounting springs, the fan housing, motor and fan form a spring system having a certain natural resonant frequency compared with that of the operating speeds of the fan (at [0023]), and a muffler arrangement in the air flow path of the flow generator having a specific connecting arrangement between two muffler volumes (at [0026]).
The specification also devotes significant discussion to the humidifier. Relevant to the above-mentioned objectives, at [0034] the sealing connection between an air inlet and a flow path in the humidifier is actuated by drop-in assembly of the water container and the hinged closing of the lid. A similar sealing arrangement is described at [0036] that further involves an engageable locking mechanism with the hinged lid. At [0038], the specification effectively states that the same engageable locking mechanism with the hinged lid, when engaged, forms a seal between the water container air outlet and the air delivery portion of the lid. Paragraph [0040] describes the water container and the water container receiving portion of the base having complementary formations adapted to guide drop-in positioning of the water container to align its air inlet with the outlet of the blower, that is, the flow generator. Paragraph [0042] again describes lid closure creating a sealed communication between the humidified air outlet, the seal and a gas space of the water container.
At [0025], the specification describes a flow generator and humidifier combination with the humidifier being removably attached to the flow generator. The flow generator includes optical transmission and sensing means. The humidifier includes an optical path connector. The flow generator may thus detect attachment of the humidifier.
It would appear from the above that the specification discusses several apparent technical contributions to the art, within each of the flow generator and humidifier individually, and/or as a combination of the two devices. Claim 1 though largely relates to features of the humidifier. Similarly paragraph [0006] of the specification focuses on the humidifier in outlining the general object of the invention. This focus is reinforced in a concluding statement at [00159] which states that the illustrated humidifier construction provides a compact humidifier adapted for ease of manufacture and use. Additionally, the opponent also focused its opposition on features of the humidifier. In the light of the above, I am inclined to the position that the relevant technical contribution in the present case resides in the humidifier.
There are clearly aspects of the above discussion of the humidifier that enable the objectives of simplicity, compactness and ease of use to be met whilst ensuring the proper sealing of the apparatus. Mr Dickinson (at [115] and [116] of his evidence in support) indicated that, in the light of the prior art, the key features appeared to be a humidifier lid hingedly joined to a humidifier base that defines a compartment for receiving, by drop in, a water chamber such that the inlet of the water chamber aligns with a port in the base and such that, when the lid is closed, the chamber outlet aligns with an outlet port. The lid urges downwards on the chamber to seal the water chamber and improve thermal contact with a heater plate in the bottom of the compartment. Mr Smith broadly concurred with this (at [144] of his evidence). While Mr Dickinson mentioned a hinged lid, paragraph [00157] of the specification indicates that, whilst the preferred embodiment encompasses a pivoting movement for the lid, other movements are contemplated including sliding and translation. I regard the relevant technical contribution in the present case to be the ability to mate the water container to a base of complementary configuration, and a lid closure that together facilitate alignment and the effective sealing of the airway components of the humidifier.
Whether The Claims Are Supported
Whether There Is Support For First Air Opening Located Other Than On The Top Portion Of Water Tub
The opponent submitted it is clear from the specification that the defined first opening is on the top portion of the water tub and communicates with the outlet pipe in the humidifier lid. These openings are sealed by the lid seal when the lid is closed. The opponent further indicated that the specification gives no description of how the apparatus could be configured such that the first air opening is located somewhere other than on the top portion since the required seal is stated and claimed to be between the lid and the top portion of the water container. No other examples or comments are provided in the specification.
The specification may suggest at least some of the airway components associate with the lid and/or the top portion of the water container, for example at [00118]. On the other hand, it would appear, for the person skilled in the art, that the association need not be direct. For example, the minimum requirement for the lid closure to be part of the mechanism to align and seal the airways would appear to be the application of sufficient downward pressure from the lid. The locations of the air outlet and gas outlet port from the humidifier would appear to be by the way. In this way, I would expect the relevant person skilled in the art would have understood, at the relevant time, that the specification disclosed an arrangement where the lid closure enabled effective alignment and sealing of the air outlet and gas outlet port even if those outlets were in or adjacent to the sides of the water container. In this respect it may be noted that claim 1 defines the second air opening in a side surface of the water container facing the rear wall of the flow generator. Similarly paragraph [0035] of the specification describes a gas passage inlet located on a rear face of the water container. In the same vein, I have indicated above that the relevant technical contribution is not in this area. Rather it is in the ability to mate the water container to a base of complementary configuration, and a lid closure that together facilitate alignment and the effective sealing of the airway components of the humidifier.
Mr Dickinson’s evidence would also appear to be favourable to the applicant on this point. At [120] of his evidence for example, the mating of various air flow passages is clearly demonstrated in the art and the precise selection made will largely depend on the wider system architecture. Moreover, Mr Dickinson stated that such a selection would be from known alternatives and straightforward to implement. It is also not apparent that a seal between the lid and the top portion, as claimed in claim 1, necessitates its purpose, from the description and drawings, being only to seal around an opening in the top portion.
There may be the further argument that the air openings in the described embodiments are in the top portion of the water container by virtue of the top portion including the top of the tub lid and downwardly-extending side walls. While that may be so, the person skilled in the art at the relevant time would have understood that the specification disclosed that the air openings could have been in a lower portion. The crucial point is that the air openings need to be above the surface of the water in the water container.
I conclude there is support in the present case for the first air opening being located other than on the top portion of the water container.
Whether There Is Support For First Gas Flow Port Located Other Than In The Lid
The opponent indicated that this point mirrored the previous point. The only disclosure is of the first gas flow port being in the lid.
As alluded to above, the person skilled in the art would have understood at the relevant time that the specification disclosed, for example, a gas flow outlet port being in or adjacent to the sides of the water container whilst enabling effective alignment and sealing of the port by lid closure. For similar reasons as discussed above, I conclude there is support for the first gas flow port being located other than in the lid.
Whether There Is Support Only For First Air Opening And Second Air Opening Being The Air Outlet And Inlet Respectively Of The Water Tub
The opponent indicated that claim 1 does not identify which of the first and second air openings is the air outlet and inlet, respectively, of the water container. On the other hand, the opponent submitted there was only support for
a)the first air opening being the air outlet, and
b)the second air opening being the air inlet.
This was, by the opponent’s submission, consistent with the disclosure in the specification and by the approach taken by the experts from both sides.
At [44] of his evidence in support, Mr Dickinson noted the absence of an indication in claim 1 as to which air opening is the inlet or the outlet. Subsequently at [45] Mr Dickinson resolved, from the descriptive part of the specification, that the second air opening is the humidifier inlet and the first air opening is the humidifier outlet. Mr Smith came to a similar conclusion by similar deduction from the specification (at [73], item 1.3, of his evidence).
Sheppard J summarised the rules of construction for a patent specification in Décor Corporation Pty Ltd v Dart Industries Inc., [1988] FCA 399, (1988) 13 IPR 385 at 400 [14]. Relevantly to the present matter, if an expression in a claim is not clear or is ambiguous, it is permissible to resort to the body of the specification to define or clarify the meaning of the words used in the claim.
In the present case, the experts on each side have done what the authorities have endorsed. In the face of some ambiguity in claim 1, they have turned to the body of the specification to establish which claimed air opening is the inlet and which is the outlet. Having established the claimed first air opening is the outlet and the claimed second air opening is the inlet, it is unnecessary to spell it out in the claim. This issue is not a matter of support but a matter of resolution of an ambiguity of the claim. On the basis of that construction the claim is supported.
Whether There Is Support Only For Catch That Engages Heater Pad
The opponent indicated that the specification was particular about the mechanism by which the base of the water container is pressed into good heat-transfer contact with the heater pad. Essentially the complaint was that claim 1 merely provided for a catch configured to be rotatably engageable with the base, not with the heater pad cover.
It may be noted that claim 1 defines a base with a heater, the base being configured to receive the water container. Later in the claim, reference is made to the heater of the base. This arrangement has support for example at [00118] of the specification where the base has a heater fitted thereon and where the heater comprises a heater plate and a ceramic heater pad. Since the heater unit thus becomes part of the base, it would appear substantially immaterial as to whether the catch for the lid, as claimed, is engageable with the base or the heater plate.
The opponent pressed the point of maintaining good heat-transfer contact between the bottom portion of the water container and the heater, as is also claimed. While there may possibly be some difference in thermal efficiency depending on whether the catch engages the base or engages the heater plate, such a difference is not readily discernible from the description or drawings of the specification. Again, the heater unit, as claimed and described, is part of the base. Moreover, the objective is good heat-transfer contact, and not something superior to that.
I conclude there is support for the catch for the lid being configured to be rotatably engageable with the base.
Whether There Is Support Only For Lid Seal That Functions To Seal Air Outlet Of Water Tub And Gas Flow Port Located On Lid
Earlier, I indicated that it was not apparent that a seal between the lid and the top portion, as claimed in claim 1, necessitated its purpose, from the description and drawings, being only to seal around an opening in the top portion. Given the person skilled in the art, at the relevant time, would have understood the specification to disclose an arrangement where the air outlet and gas outlet port were in or adjacent to the sides of the water container, the lid seal of claim 1 would in such circumstances clearly have another purpose. Whilst claim 1 is not specific in that respect, I would expect the person skilled in the art at the relevant time would have understood the specification to teach the desirability to seal the top portion of the water container and the humidifier lid regardless of the presence or otherwise of an air opening in the top portion of the water container or a gas flow port in the lid. In this respect, paragraph [00163] of the specification describes the outcome that, by providing the top seal to the water receptacle as part of the humidifier lid, improved simplicity of use is achieved while minimising the risk of spillage of water. In more detail in another aspect, paragraph [00142] and Figure 18 of the specification describe and illustrate the underside of the humidifier lid having a seal 676 which provides a seal to the tub lid, or the top portion of the water container. That seal comprises an edge seal portion around the periphery of the lid and is not directly associated with the air outlet. Moreover, the seal 676 has a membrane 676b effectively over the inlet air passage space in the tub lid, when the humidifier lid is closed. Again there is no direct association with the air outlet.

I conclude there is support for the lid seal as presently claimed in claim 1.
CONCLUSION
I have found the claims are supported by the matter disclosed in the specification on all points raised in this opposition. Subject to appeal, I direct the application proceed to grant.
COSTS
At the hearing, the applicant sought its costs if successful. If the applicant did not succeed on the matters pursued by the opponent, then the applicant submitted that there should be no award of costs in view of the opponent having withdrawn all its other grounds of opposition.
The opponent submitted that costs should follow the event.
The opposition is unsuccessful. I award costs in accordance with Schedule 8 against the opponent, Fisher & Paykel Healthcare Limited.
M. G. Kraefft
Delegate of the Commissioner of Patents